Chebat v Minister for Immigration and Citizenship

[2007] FCA 1563

FEDERAL COURT OF AUSTRALIA

Chebat v Minister for Immigration and Citizenship [2007] FCA 1563

TONY CHEBAT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRANT REVIEW TRIBUNAL
NSD 981 OF 2007

ALLSOP J
5 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TONY CHEBAT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRANT REVIEW TRIBUNAL
Second Respondent

JUDGE:

ALLSOP J

DATE OF ORDER:

5 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

(1)The notice of motion filed by the applicant/appellant be adjourned to 3.15 pm on 26 October 2007.

(2)The applicant file and serve full written submissions on the appeal on or before 19 October 2007.

(3)The hearing on 26 October 2007 pursuant to order 1 above will be either:

(i)      a further hearing of the notice of motion; or

(ii)     a hearing of the appeal.

THE COURT NOTES THAT:

(4)If the applicant does not file and serve written submissions in accordance with order 2 above, the notice of motion will be dismissed with costs.

(5)If the applicant does file and serve written submissions in accordance with order 2 above, Allsop J’s staff will communicate with the parties in writing by 23 October 2007 outlining the Court’s provisional view as to whether the submissions raise any prima facie grounds for the appeal so that the parties may ague the notice of motion and appeal in light thereof.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TONY CHEBAT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRANT REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	5 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 9 August 2007 the Court made orders pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that Mr Tony Chebat’s appeal from orders made by the Federal Magistrates Court be dismissed. As the form of that provision of the Act makes clear, that order was made because of the non-appearance of Mr Chebat on that day. The reasons I gave extempore on that day, which have been reduced into a set of reasons for judgment, describe why I made that order.

2. In those reasons I made clear in [6] that if any application were to be made to me to set aside my orders, I would need to be persuaded that there was some merit in the appeal and to that end I stated in [6]:

   To that end, I would need to be able to read written submissions as to the merits of the appeal.

3. Directions were previously made in this appeal for Mr Chebat as the appellant to file written submissions.  He filed no written submissions prior to becoming ill with an abscess in his tooth on 5 August 2007.  Mr Chebat has given evidence before me today that he had an abscess in his tooth which necessitated the undergoing of root canal therapy on 7, 8 and 9 August 2007.  I accept his evidence that he underwent that treatment and I am prepared to accept in his favour that he was unable to come to court on 9 August 2007.

4. However, Mr Chebat’s affidavit declared and affirmed on 1 September 2007 is entirely inadequate to indicate to me or to the Court that he has any reasonable prospects of success on the appeal.  I will not set out paragraphs 3, 4, 5 and 6 in full but they provide no clear basis for any assertions that any conclusion drawn by the learned Federal Magistrate was wrong.

5. Whilst it is a serious step to deprive Mr Chebat of an appeal in circumstances where he had a reason for not being present on the day of the appeal, I am also bound to recognise that if there are no apparent grounds for the appeal, the public funds, particularly the costs to the Minister of further attention to this matter, should be avoided.

6. What I propose to do today is as follows.  I do not propose to make an order setting aside the orders made on 9 August 2007; however I do not propose today to dismiss the motion.  I propose to provide Mr Chebat with an opportunity on or before 19 October to file and serve full written submissions on the appeal as to the errors in the Federal Magistrate’s reasons.  If those submissions provide some reasonable ground for the appeal, I will consider, after hearing the Minister (whether in writing or in Court) setting aside the orders.  However, if I am of the view that those written submissions do not set out any reasonable prospect of setting aside the orders of the Federal Magistrate, I will dismiss the motion.  If no submissions are filed on or before 19 October, I will dismiss the motion.

7. The question then arises so that the proceeding does not become overlooked after 19 October 2007 what I should do in relation to setting the matter down.  The most convenient course in my view would be as follows:  that I give Mr Chebat until Friday, 19 October 2007 to file and serve his written submissions.  If he does, I will hear the matter at 3.15 on Friday, 26 October 2007 and on that day I will deal with the matter both by way of the motion and the final appeal.  If no proper submissions have been filed, I will give judgment on that day dismissing the motion.

8. If written submissions are received and I think they raise a prima facie case of error, my staff will communicate with the parties my prima facie view on Monday 22 October 2007 or Tuesday 23 October 2007.  If after reading those submissions I am of the view that they do not raise a prima face ground of error, I will communicate that prima facie view to the parties on Monday or Tuesday, so on the Friday the parties should understand what my provisional view is about whether they are sufficient to identify any error in the Federal Magistrate. 

9. Therefore the orders I make are as follows:

   (1)The notice of motion filed by the applicant/appellant be adjourned to 3.15 pm on 26 October 2007.

   (2)The applicant file and serve full written submissions on the appeal on or before 19 October 2007.

   (3)The hearing on 26 October 2007 pursuant to order 1 above will be either:

   (i)   a further hearing of the notice of motion; or

   (ii)  a hearing of the appeal.

   The court notes that:

   (4)If the applicant does not file and serve written submissions in accordance with order 2 above, the notice of motion will be dismissed with costs.

   (5)If the applicant does file and serve written submissions in accordance with order 2 above, Allsop J’s staff will communicate with the parties in writing by 23 October 2007 outlining the Court’s provisional view as t whether the submissions raise any prima facie grounds for the appeal so that the parties may ague the notice of motion and appeal in light thereof.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:        25 October 2007

The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 October 2007
Date of Judgment:	5 October 2007